Harrison v Charleton

JurisdictionIreland
CourtSupreme Court
JudgeMcKechnie J.,MacMenamin J.,Baker J.
Judgment Date15 Dec 2020
Neutral Citation[2020] IESCDET 140
Docket NumberSupreme Court record no: S:AP:IE:2020:000091 High Court record no: 2018 No. 939 JR

[2020] IESCDET 140

THE SUPREME COURT

DETERMINATION

McKechnie J.

MacMenamin J.

Baker J.

Supreme Court record no: S:AP:IE:2020:000091

Court of Appeal record no: A:AP:IE:2019:000447

High Court record no: 2018 No. 939 JR

BETWEEN
KEITH HARRISON
PLAINTIFF
AND
PETER CHARLETON
DEFENDANT
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Plaintiff / Applicant to appeal to this Court from the Court of Appeal

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal
DATE OF JUDGMENT OR RULING: 22nd June, 2020
DATE OF ORDER: 23rd July, 2020
DATE OF PERFECTION OF ORDER: 31st July, 2020
THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 18th August, 2020 AND WAS IN TIME.
Introduction
1

This determination relates to an application for leave to appeal from a decision of the Court of Appeal.

2

The general principles applicable by this Court in determining whether to grant or refuse leave to appeal, having regard to the criteria incorporated into the Constitution, as a result of the 33rd Amendment, have now been considered in a large number of determinations, and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v. Director of Public Prosecutions [2017] IESCDET 134, and in a unanimous judgment of a full Court delivered by O'Donnell J. in Price Waterhouse Coopers (A Firm) v. Quinn Insurance Ltd. (Under Administration) [2017] IESC 73; [2017] 3 I.R. 812. It follows that it is unnecessary to revisit the new constitutional architecture for the purposes of this determination.

3

Furthermore, the application for leave filed, and the respondent's notice, are published along with this determination (subject only to any redaction required by law), and it is therefore unnecessary to set out the position of the parties.

Background Facts
4

This application concerns findings made by the respondent in his capacity as Chairman of the Tribunal of Inquiry into disclosures made under the Protected Disclosures Act 2014 and certain other matters (“the Disclosures Tribunal”). On the 22nd June, 2020, the Court of Appeal ( [2020] IECA 168) dismissed the applicant's appeal from a judgment of the High Court ( [2019] IEHC 626; Donnelly J.), dismissing his application for judicial review to quash findings concerning the applicant contained in the second interim report of the Disclosures Tribunal, and to quash findings made in the third interim report of the Disclosures Tribunal.

5

The applicant, a member of An Garda Síochána stationed in Donegal, was the subject of criticism and findings in the reports made by the respondent as Chairman of the Tribunal. Further background to this application can be found in the description of events in the judgments of the High Court and Court of Appeal. The applicant's complaints can also be found in his application for leave and the respondent's replies in the response thereto. While the background may be detailed, in fact the issue in the judicial review was a simple one.

6

The respondent, formerly a senior counsel, was retained as lead counsel to the Tribunal of Inquiry into complaints concerning some Gardaí of the Donegal Division (“the Morris Tribunal”), which investigated garda misconduct in County Donegal. Between the years 2002 and 2005, Chief Superintendent Terry McGinn was liaison officer on behalf of An Garda Síochána to that Tribunal. While the Morris Tribunal was in session, Raidió Teilifís Éireann (“RTÉ”) broadcast material which might have been understood as inaccurately conveying that Chief Superintendent McGinn had been uncaring to, and neglectful of, a Detective Garda Dooley, who had made allegations of misconduct. In fact, the full transcript of what took place at the Morris Tribunal showed the opposite was the case, and that Chief Superintendent McGinn had been concerned as to the Detective Garda's welfare.

7

In his capacity as counsel, the respondent was asked to make a clarification statement on the broadcast at a hearing of the Morris Tribunal. Before the Chairman, Mr. Justice Morris, the respondent stated that:

“[all of us] who have worked at the tribunal have great respect for the assistance that Chief Superintendent McGinn has given and indeed it would be unfair to her, given that she has done her best to assist the tribunal in terms of uncovering the truth, that an attitude be left abroad whereby the people listening to the programme might feel that she simply wasn't interested in Detective Garda Dooley when he came to her and attempted to tell the truth, because in fact the opposite is, on the basis of the transcript, the case.”

8

The Chairman, Mr. Justice Morris, confirmed that the full transcript of the hearing, only part of which had been broadcast, actually showed that Chief Superintendent McGinn had been supportive of the Detective Garda.

9

Eleven years later, Chief Superintendent McGinn was a witness before the Disclosures Tribunal. As part of its work, the Tribunal had occasion to deal with the nature of the applicant's relationship with a Ms. Simms, his partner. It appears that at the Disclosures Tribunal, a question arose as to whether the Chief Superintendent had acted improperly in asking a member of An Garda Síochána to take a statement when a report reached her about an argument which had apparently taken place between the applicant and Ms. Simms. On the 9th October, 2017, counsel for the applicant put to Chief Superintendent McGinn that she had been praised by the Morris Tribunal for her co-operation. It was further put to her that acting as liaison officer had required being in close co-operation with the Morris Tribunal. The Chief Superintendent answered that she was completely independent of it. The issue was not pursued further.

10

On the 19th October, 2018, during the currency of the Disclosures Tribunal, the applicant's solicitor wrote to the respondent complaining that in his second interim report he, the respondent, had made the observation that Chief Superintendent McGinn was a determined officer, whose attitude was admirable; that there was no evidence that she had acted with malice towards a colleague; that she had been kind and compassionate towards the applicant; and that the cross-examination of her had been unkind. The report referred to the Chief Superintendent as a witness of truth, whose testimony was eloquent.

11

The letter written by the applicant's solicitor complained that the respondent had not drawn attention to his alleged previous involvement with the Chief Superintendent and claimed that this ought to have been disclosed. The letter stated the applicant had only become aware of this on the same day as the publication of the third interim report of the Disclosures Tribunal, and complained that the respondent had not disclosed this alleged prior connection which, it was claimed, gave rise to an apprehension of objective bias. It was further claimed that, had the facts been then known to the applicant, he would have instructed his lawyers to apply to the respondent to recuse himself from dealing with issues concerning the interaction between the applicant and the Chief Superintendent, at a time when...

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